memorandum september 23, 2020

(907) 465-2450 LAA [email protected] 120 4th Street, Room 3

LEGAL SERVICES DIVISION OF LEGAL AND RESEARCH SERVICES

LEGISLATIVE AFFAIRS AGENCY STATE OF ALASKA State Capitol

Juneau, Alaska 99801-1182 Deliveries to: 129 6th St., Rm. 329

MEMORANDUM September 23, 2020

SUBJECT:

TO:

FROM:

Executive Branch Records; Legislative Requests for Information from the Governor (Work Order No. 32-LS0126)

Representative Zack Fields

Emily Nauman ~~ ~ Deputy Director {iv" v

You asked two related questions about the legal permissibility of the Governor or the Governor's staff releasing certain information. Specifically, you asked, (1) could the Governor or the Governor's Chief of Staff disclose when the Governor's Office learned of inappropriate text messages between the Attorney General and another state employee; and (2) whether the Governor or the Governor's Chief of Staff could disclose when they became aware that the Attorney General denied a public records request related to the text messages. Both questions rely on a similar legal analysis. Therefore, this memorandum will respond to both questions in tandem.

Background On August 25, 2020, the Anchorage Daily News reported that it had obtained copies of approximately 558 text messages Attorney General Clarkson sent to the personal phone of a junior state employee between March and April of2020. 1 Both the Attorney General and the recipient of the messages were exempt employees. 2 The article, quoting a source, stated that the text messages "crossed professional and ethical boundaries" and were flirtatious in nature. 3 Copies of many of the text messages were published in the article. 4

The same article also revealed that the Attorney General was on a month-long leave of absence without pay and that the leave began August 3, 2020, over 20 days before the

1 Kyle Hopkins, Alaska's Attorney General Sent Hundreds of 'Uncomfortable ' Texts to a Female Colleague, Anchorage Daily News, Aug. 25, 2020, https://www.adn.com/alaskanews/2 02 0/08/2 5 / alaskas-attorney-general-on-unpaid-lea ve-after-sending-hundreds-ofuncomfortable-texts-to-a-young-female-colleague/ (last visited Sept. 18, 2020).

1 Id.

3 Id.

4 Id.

Representative Zack Fields September 23, 2020

Anchorage Daily News article was published and the leave of absence became public. 5

Hours after the article was published, the Attorney General resigned. 6 The article reported that the Anchorage Daily News had submitted a records request for text messages Clarkson sent to state employees. 7 Later, it was revealed that the public information request was passed directly to Clarkson, who was asked whether he had any relevant public records on his personal or state-issued phones. He said he did not, and the Department of Law denied the request, claiming it had no such records. 8 During a press interview, Governor Dunleavy declined to answer a question on what he knew and when he knew about inappropriate text messages the former Attorney General sent; the Governor stated he was limited from answering the question by state law. 9 You speculated that the state Personnel Act was preventing disclosure of the records.

State Personnel Act The State Personnel Act (AS 39.25.010 - 39.25.995) likely does not apply to make the Attorney General's personnel records confidential. Generally, AS 39.25.080(a) provides "[s]tate personnel records, including employment applications and examination and other assessment materials, are confidential and are not open to public inspection except as provided in this section." AS 39.25.110(4) states that the State Personnel Act does not apply to "the head of each principal department in the executive branch." 10 The Attorney General is the head of the Department of Law, and therefore is exempt from the

5 Id.

6 Azi Paybarah, Alaska Attorney General Resigns Over Texts to Female State Worker, N.Y. Times, Aug. 25, 2020, https://www.nytimes.com/2020/08/25/us/alaska-clarksonresignation.html (last visited Sept. 18, 2020).

7 Alaska's Attorney General Sent Hundreds of 'Uncomfortable' Texts to a Female Colleague, supra.

8 Nathanial Herz, A Newspaper Requested the Alaska AG 's Incriminating Texts. The Decision not to Release Them was His, Alaska Public Media, Sept. 11, 2020, https://www.alaskapublic.org/2020/09/11/a-newspaper-requested-the-alaska-agsincriminating-texts-the-decision-not-to-release-them-was-his/ (last visited Sept. 18, 2020).

9 Andrew Kitchenman, When it Comes to Weighing in on His Former Attorney General, Dunleavy Says He's Limited by State Law, Alaska Public Media, Sept. 1, 2020, https://www.alaskapublic.org/2020/09/01/when-it-comes-to-weighing-in-on-his-formerattorney-general-dunleavy-says-hes-limited-by-state-law/ (last visited Sept. 18, 2020).

10 See also Doe v. Alaska Superior Court, 721 P.2d 617, 621 - 622 (Alaska 1986)(holding that the personnel records of members of boards and commissions, who are in the exempt service as defined by AS 39.25.110, are not confidential under AS 39.25.080(a)).


confidentiality provisions of the State Personnel Act. 11

Deliberative Process Privilege The Governor could also have been asserting the deliberative process privilege when he declined to provide information about his knowledge of the Attorney General's activities, absence, and denial of the records request. At the outset, it is important to acknowledge that the deliberative process privilege may be asserted by a member of the executive branch; however, the privilege does not preclude the Governor from releasing the information, if he chooses to do so. 12

Created by common law, 13 the deliberative process privilege prevents disclosure of documents that are deliberative in nature containing opinions, recommendations, or advice about policy; purely factual material is not protected unless it cannot be separated from the policymaking process. 14 The deliberative process privilege is intended to "protect[] the mental processes of government decision makers from interference." 15 The Alaska Supreme Court has noted, generally, that "public officials may assert [the]

11 There may be other arguments that the text messages were not part of the public record. For instance, the text messages were sent from and to personal cell phones or the text messages were not sent during working hours. In addition, both Clarkson and the recipient of the messages may be able to assert a constitutional privacy claim over the messages under art. I, sec. 22, Constitution of the State of Alaska. Once the text messages became public, however, that privacy concern is likely minimized. In addition, importantly, your question relates to the knowledge of the governor, not the content or existence of the messages.

12 One other important note: the deliberative process privilege is usually asserted in response to a public records request. Your question relates the knowledge and recollection of the Governor, not a public records request. I cannot think of a way, short of legislative subpoena, to compel a member of the Governor's staff to provide that information.

13 Alaska's public records act sets out a limited number of exceptions to its broad disclosure requirements; one of these exceptions is for "records required to be kept confidential by ... state law." AS 40.25.120(a)(4). Because Alaska's statutory definition of "state law" encompasses common law as well as positive law, the Alaska Supreme Court has held that the deliberative process privilege is "one of the judicially recognized 'state law' exceptions" to public access under the public records act. Gwich'in Steering Committee v. Office of the Governor, 10 P.3d 572, 578 (Alaska 2000).

14 See, e.g., Capital Information Group v. Office of the Governor, 923 P.2d 29 (Alaska 1996).

15 Gwich'in Steering Comm., 10 P.3d at 578.


privilege and withhold documents when public disclosure would deter the open exchange of opinions and recommendations between governmental officials." 16 To determine whether disclosure would interfere with that process, the proponent of the privilege must show as a threshold matter that the communication is both "predecisional" and "deliberative." 17 Once those requirements have been met, the court balances the public's interest in disclosure against the agency's interest in confidentiality.

In at least one case, the Alaska Supreme Court has found that the public's interest in disclosure outweighed the government's interest in protecting a document. In Fuller v. City of Homer, a record request was made to Homer city manager, Ron Drathman, for information he used in preparing an annexation proposal. The request was made after the annexation petition was filed. 18 The Court ultimately held that the "request for disclosure must be honored because, on the facts of this case, the public's interest in disclosure predominates over any legitimate interest in confidentiality that Drathman might have retained after the city council opted to file his proposed annexation." The Court explained its reasoning:

The documents are basically factual, dealing largely with issues of costs and the city's ability to extend its services. Moreover, these documents include important annexation cost information not readily available elsewhere. We find no tactical discussion that could be considered as "suggesting a strategy" for presenting the case either to the council or the local boundary commission. And we see no realistic danger that postpetition disclosure would have any appreciable chilling effect on the city's future deliberative process. Thus, regardless of whether the deliberative process privilege might have justified denying access to the documents at some earlier stage of the process, we conclude that the privilege was not available by the time the council denied Fuller's request for disclosure. 19

In summary, the Court considered (1) the contents of the report (which it states were largely factual); (2) that the information in the report was not easily available elsewhere;

16 Id.

17 Id. at 579.

18 75 P.3d 1059 (Alaska 2003). Related to the fact that the annexation decision had already been made, the Court noted that "a predecisional and deliberative communication does not automatically lose its privileged character after deliberation ceases and a decision is made. In this regard, we have held that each case must be considered on its own merits ... " Id. at 1064 (Internal citations omitted).

19 Id. at 1065.


and (3) that release of the document would not have a "chilling effect" on the deliberative process. 20

In this instance, you inquired about two pieces of factual information, the date the Governor became aware of the text messages sent by the Attorney General, and the date the Governor became aware of that the Attorney General had failed to provide information relating to the text messages which resulted in the denial of a public records request . Generally, factual information is not protected by the deliberative process privilege. Therefore, I do not believe the information is protected under the deliberative process privilege. Even if the facts could not be separated from the decision making process, the information no longer appears to be "predecisional. 1121 In this instance, the Attorney General has resigned, therefore, any decision related to his employment has already been made.

In sum, because the information appears factual and is no longer predecisional, I do not believe the deliberative process applies in this instance.

Legislative Oversight Given that the State Personnel Act and the deliberative process privilege likely do not apply, it is unclear what law or which grounds the Governor was relying on when he declined to state what he knew about the Attorney General's texts and when he received information about the texts. Until that information is made available, it is difficult to provide further analysis.

Regardless of the law or other legal grounds cited by the Governor, there is a strong argument that the legislature should have access to information related to the timing of and reason for the Attorney General's extended unpaid leave because the Attorney General is the head of a principle department, subject to confirmation by the legislature under art. III, sec. 25, of the Alaska Constitution. It could be argued that because the

20 In a recent case where the Court denied disclosure of a document, the Court considered that the records documented communications that "occurred before the decision was issued and contain give-and-take on the wording of [a] decision," that the documents were created by a person "acting as a neutral advisor to the Board sitting as a quasijudicial body," that the body making "factual and legal determinations must be able to discuss freely its thoughts on a case" and that "[d]isclosure of predecisional communications between members of judicial or quasi-judicial bodies and their supporting staff could undermine public confidence in the judicial process and affect the quality of governmental decision making." Griswold v. Homer City Council, 428 P.3d 180, 188 - 89 (Alaska 2018), reh'g denied (Oct. 26, 2018). Further, the Court found that "disclosure of the documents[] requested would serve little public purpose." Id. at 189.

21 The Court in Fuller noted "that the time elapsed after deliberations is a relevant consideration." Supra, at 1064.


Attorney General is subject to confirmation, the legislature or a legislative committee has the constitutional authority to investigate matters having to do with the position and that the legislature has a legitimate interest in ensuring that the head of a department of state government is managing the department within the bounds of state law, including state sexual harassment laws. In Cook v. Botelho, the Alaska Supreme Court noted, "[t]he constitution delegates a part of the appointment power to the legislature. This delegation implies both a power, and a duty, to investigate the status of appointed offices."22

Similarly, an argument could be made that the legislature has a right to be notified when the Attorney General is not at his post because of suspension or resignation, especially when those circumstances may involve misconduct. Again, Cook v. Botelho provides "[t]he legislature holds broad powers of investigation necessary to its law-making activities. The constitutional grant of the confirmation power implies a coincident power and duty to investigate the status of the appointed offices as well as the qualifications of the individuals appointed to those offices."23 Mason's Manual of Legislative Procedure echoes this statement. Section 795( 10) of Mason's states "[ a ]n investigation into the management of the various institutions of the state and the departments of the state government is at all times a legitimate function of the legislature." Given the inherent investigatory authority of the legislature and the broad language of Cook, it is likely that a Court would find that the Governor must provide information related to the leave and resignation of Attorney General Clarkson to the legislature. 24

If we may be of further assistance, please advise.

ELN:lme 20-003.lme

22 Cook v. Botelho, 921 P .2d 1126, 1131 (Alaska 1996) (internal citations omitted).

23 Id. at 1132. Admittedly, however, Cook v. Botelho involved a dispute over interim appointees, not over whether the kind of information being sought after in this instance should be disclosed. A court might find the case distinguishable.

24 It is likely that the only method for obtaining this information may be a legislative subpoena. If you would like more information about the scope and nature of the authority of a legislative committee to issue subpoenas, please let our office know.

memorandum september 23, 2020

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